35 F. 343 (D.Kan. 1888), Lewis v. Comanche County

Citation:35 F. 343
Party Name:LEWIS v. COMANCHE COUNTY.
Case Date:May 31, 1888
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 343

35 F. 343 (D.Kan. 1888)

LEWIS

v.

COMANCHE COUNTY.

United States Circuit Court, D. Kansas.

May 31, 1888

Williams & Dillon and Rossington & Smith, for plaintiff.

G. C. Clemens and H. A. Smith, for defendant.

FOSTER, J.

The plaintiff alleges in his petition that the defendant is a corporation duly organized under the laws of the state of Kansas, and on or about March 10, 1874, made and issued its certain bonds, payable 10 years after date, with 10 per cent. interest, copies of which are attached; that said bonds had certain coupons attached for the interest to become due thereon, etc.; that the plaintiff is the holder and owner of the coupons sued upon, and praying judgment for something over $30,000 and interest. The defendant denies, generally, the allegations of the petition, and specially denies that Comanche county was duly organized at the time said bonds were issued; that, on the contrary, it was not organized until February, 1885, and denies that it ever authorized

Page 344

the making, issuing, or delivering of said bonds, etc. The agreed facts as to its organization are, briefly, as follows, Prior to September 8, 1873, Comanche county was an unorganized county of this state. On September 8, 1873, a petition was presented to the governor, purporting to be signed by over 40 inhabitants and electors of said county, stating that there were 600 inhabitants in said county, and asking that said county be organized, and that A. Updegraff be appointed census taker, and G. Brazell, R. Updegraff, and David Connell be appointee temporary county commissioners, and J. W. Lane temporary county clerk, and that the temporary county-seat be located on section 33, township 32 S., range 18 W., which petition was verified by three persons, whose residence is not stated. On September 23d a petition was presented to the governor, purporting to be signed by over 60 citizens of said county, asking to have Smallwood made the temporary county-seat. On October 15th Governor Osborn appointed A. Updegraff census taker of said county, who filed his oath of office, and thereafter proceeded to take, or pretended to take, a census of said county, and returned a list of 600 inhabitants, certified as correct, etc. On October 28th the governor issued his proclamation, which is as follows:

'PROCLAMATION.

'Whereas, a memorial signed by forty householders, residents of Comanche county, Kan., and legal electors of the state, whose signatures have been duly attested by the affidavit of three householders thereof, showing that said county has six hundred inhabitants, and praying for the organization of the same, said affiants setting forth that they have reason to believe, and do believe, said memorial; and whereas, it appears from actual enumeration by the census returns, duly made and certified according to law by an officer regularly commissioned and qualified, that there are six hundred bona fide inhabitants of said county of Comanche; Now, therefore, know ye, that I, Thomas A. Osborn, governor of the state of Kansas, by authority vested in me, have appointed and commissioned G. Brazell, A. J. Mowry, and David Connell special county commissioners, and H. H. Moss special county clerk of Comanche county, Kan., who were the persons recommended for said offices in said memorial, and do hereby declare Smallwood the temporary county-seat of said county.

'In testimony whereof I have hereunto set my hand, and caused to be affixed the great seal of the state.

'Done at Topeka, this 28th day of October, 1873. (Seal.) 'THOMAS A. OSBORN.

'By the Governor. W. H. SMALLWOOD, Secretary of State.'

It will be observed that the governor does not declare the county organized, but appoints special county...

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